Jersey Unreported Judgments

[2010]JRC203

ROYAL COURT

(Samedi Division)

12^th November 2010

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats de Veulle and Nicolle.

The Attorney General

-v-

Justin Edward Gavey

Sentencing by the Inferior Number of the Royal Court, following guilty pleas to the following charges:

1 count of:	Larceny as a servant (Count 1).
1 count of:	Making indecent images contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994 (Count 2).

Age:  41.

Plea: Guilty.

Details of Offence:

Count 1:- Employed for over ten years by Island Lock and Safe Company.  Stole £181 over a period of just over one month from safe at work.  Eight individual thefts. 

Count 2:- Indecent photographs downloaded at work and taken home on USB stick and installed onto home computer.  Images consisting of movies and photographs viewed over a period of six years. 

Copine Level               Number of photographs                           Number of movies

1                                           241                                                       4

2                                           5                                                         7

3                                           11                                                        1

4                                           37                                                        14

5                                           0                                                         2

Level five movies particularly serious including what appeared to be genuine rape and abuse of a girl aged between 13 and 15 years. 

Details of Mitigation:

Guilty plea and, after some prevarication, full admissions to both charges.  Good character.  The defendant had lost his wife (now divorced) and contact with four year old daughter as a consequence of offending. 

Previous Convictions:

None. 

Conclusions:

Count 1:	3 months' imprisonment.
Count 2:	18 months' imprisonment, consecutive.

Total:  21 months' imprisonment. 

Forfeiture and destruction of the computer. 

Sentence and Observations of Court:

The Court agreed that the making of images is becoming increasingly prevalent in Jersey. 

Conclusions granted. 

R. J. MacRae, Esq., Crown Advocate.

Advocate C. R. Baglin for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Mr Gavey, you are here to be sentenced on two counts; larceny of £181 from your employer and a second count of making indecent images of children.  As to the larceny which was in breach of trust, the Court's policy is to impose a custodial sentence unless there are exceptional circumstances.  There are no exceptional circumstances here and the Court considers therefore that a custodial sentence is right in principle. 

2.        We take into account the relatively small amount of money, the relatively short time over which the offending took place; the fact that you were a trusted employee and the other mitigation which is available to you and which I will refer to in a moment. 

3.        The Court considers that the conclusions of the Crown of 3 months' imprisonment on that count are right and you are accordingly sentenced to 3 months' imprisonment on Count 1 of the Indictment. 

4.        The more serious offence is that in Count 2 which is making indecent images of children.  The images cover a broad spectrum of material ranging from level 1 to level 5 on the Copine scale.  It is noted that the images were:- 241 category 1, 5 images of category 2, 11 of category 3 and 37 at category 4.  There were also a series of movies:- 4 movies at category 1, 7 at category 2, 1 at category 3, 14 at category 4 and 2 at category 5.  These images were deliberately downloaded by you rather than being viewed online; they were put on memory stick at your work before being viewed later on a different computer.  The Crown contends that 16% of the images or movies are at level 4 and 5 and that is an aggravating factor and the Court certainly takes into account, for the purposes of sentence, the images and movies at those categories. 

5.        The Court has looked briefly at the images as requested by the Crown, which has proceeded on the basis of the remarks of the Court of Appeal in R-v-Oliver [2002] EWCA Crim 2766 at paragraph 10 where Rose LJ said:-

"As to the nature of the material, it will usually be desirable for sentencers to view for themselves the images involved, unless there is an agreed description of what those images depict."

That is all the Lord Justice says on that point and for our part, although we have looked briefly at these images and at the movie, it is right to say the Court did not find that view to be particularly helpful.  In our view it is generally sufficient for the purposes of sentence to have a description of the number of images and the definition on the Copine scale which is adequate to assess the nature of the material which is the subject of the charge, plus any other descriptive detail which can be provided.  In this case we have noted that one of the details provided, and we have seen a fragment of this film, is that the deleted level 5 movie recovered in fifteen fragments from the home computer is particularly harrowing and involved what appears to be a genuine rape and abuse scene of a young girl between 13 and 15, and the Court has noted from the fragment that that is indeed an accurate description.  For our part, we considered the description of the material to be sufficient and it was as unnecessary for us to view it as it would normally be to view a knife with which an assault had been committed.  We understand the practice for the Crown is likely to change in future so as to provide more detail and save any requirement, except in exceptional cases, for the Court to be requested to view the images.  As I have said, we did not find the view of the images to be particularly helpful because the description of the Copine scale and the type of scene which therefore it would depict seemed to us to be adequate for the purposes of the sentence which we are to impose. 

6.        As this Court said in the case of AG-v-Roberts [2010] JRC 088 where a similar charge was involved:-

"Offences of this nature will almost invariably call for a custodial sentence"

The Crown, the Court decided in that case, had approached the question of sentence in absolutely the right way and then went on to say absolutely exceptionally in the case of Roberts:-"....the Court is going to sentence on the basis that the sentence should be served in the community...."  The Court notes that this kind of offending does seem to be increasingly prevalent in the island and repeats what was said in the case of Roberts that it would require exceptional circumstances to depart from the principle of a custodial sentence. 

7.        We have had regard to all the matters which were referred to by your counsel and we have certainly looked at the references which have been provided and the letters which have been sent in, we have also looked carefully at the background report and recommendations but we think that the nature of this offending is such that the usual principle should apply and a custodial sentence should be imposed. 

8.        In the circumstances, having regard to everything that has been put before us, the Court considers that it is appropriate to grant the conclusions of the Crown and you are therefore sentenced to 18 months' imprisonment in relation to Count 2, which as it is quite different offending, is to be served consecutively to the sentence which has been imposed by Count 1, making a total of 21 months' imprisonment and you are sentenced accordingly. 

9.        We also order the forfeiture and destruction of the computer. 

10.      I just add Mr Gavey that you will have the opportunity for some help in the prison from Dr Emsley.  We appreciate that is not the same detailed help that might have been available to you otherwise but this is a matter which you need to tackle, it is a problem which you need to tackle, and the Court earnestly commends to you to take such advantage as you can with the help and assistance which Dr Emsley might be able to give you. 

Authorities

R-v-Oliver [2002] EWCA Crim 2766.

AG-v-Roberts [2010] JRC 088.

AG-v-Le Marquand [2003] JRC 043.

AG-v-Sunderland [2005] JRC 128.